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DeWine Proposed FISA Amendment in 2002 and Was Rejected

By Jeralyn, Section War on Terror
Posted on Tue Jan 24, 2006 at 12:41:30 PM EST
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Thanks to Glenn Greenwald for pointing out that in 2002, Republican Mike DeWine proposed amending FISA to reduce the probable cause standard for foreigners to one of "reasonable suspicion" and his bill was defeated.

There was good reason for rejecting DeWine's bill. It's called the Fourth Amendment. From an AP article on June 26, 2002 (available on Lexis):

Stephen Saltzburg, a George Washington University law professor, questioned whether courts would view DeWine's proposal as violating Fourth Amendment protections against unreasonable searches.

"Any departure from probable cause when dealing with electronic surveillance warrants will be dealt with extreme skepticism by the judiciary," he said.

The ACLU noted:

....the lower standard would make it too easy for the FBI "to break into a non-citizen's home, download everything in his computer and rifle through everything in his bedroom."

As I said yesterday, Senate Democrats are just falling into the Republican trap by trying to claim equal status in supporting survellance in the war on terror. They should not concede that FISA needs to be amended.

No wonder people think Democrats don't have a message or a spine. They won't filibuster Alito. They'll likely cave on some compromise version of the Patriot Act. Now they want to gut FISA. They're not holding the middle. They are abandoning the left and the center. Who speaks for the majority of Americans who aren't right-wing authoritarians? Apparently, not the Democrats.

Update: From Michael Smith, the investigative journalist who writes on defense and security issues for The Sunday Times (UK).

Dick Cheney, the architect of the illegal NSA programme, has been at the forefront of these attacks, referring constantly to 9/11 and dismissing those who complain about the programme as liberals who aren't serious about the war on terror. Despite the fact that many Republicans have come out against the illegal wiretapping programme, Karl Rove, the President's controversial chief of staff has made clear that repetition of the 9/11 message and the need for more domestic surveillance without warrant will be a major thrust of the Republicans' campaign in the mid-term elections. The message is just as crude in Washington DC as it is in Moscow. Those who worry about the abuse of citizens' rights at home are the friends of our enemies.

[hat tip Larissa at Raw Story.]

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    DeWine Proposed FISA Amendment in 2002 and Was Rejected | 16 comments (16 topical)
    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#1)
    by Talkleft Visitor on Tue Jan 24, 2006 at 02:55:08 PM EST
    So... with this thinking, if the NSA is monitoring the phone of a person in a foreign country, and said person sometimes makes calls that end up in the US, your contention is that they need a warrant for any of that monitoring? Or that they need to throw away any intel that comes out of a conversation with one end in the US? How is anything that the NSA does legal under your standard?

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#2)
    by Mike on Tue Jan 24, 2006 at 03:02:29 PM EST
    Be sure to check out Digby. He's got a nice catch. I play the total speculation game about what Digby's catch might mean. Ahhhh. 2006. It may be a good year!

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#3)
    by Talkleft Visitor on Tue Jan 24, 2006 at 03:18:10 PM EST
    Three Russians (or?) are dicussing their idea of happiness. Boris: "A car, only a car, no more" Michael: "Good vodka, and a night with Olga from the welding shop. Peter: I am sitting in my apartement, my small son is sitting on my knee while I read Solzhenitsyn, the door bell rings, I put down my son, I slide the book under my chair, I open the door, there are two men in black. "Are you Ivan Avanovitch?" "No he lives upstairs" That is my idea of happiness.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#4)
    by Pete Guither on Tue Jan 24, 2006 at 03:32:26 PM EST
    "So... with this thinking, if the NSA is monitoring the phone of a person in a foreign country, and said person sometimes makes calls that end up in the US, your contention is that they need a warrant for any of that monitoring? Or that they need to throw away any intel that comes out of a conversation with one end in the US?" No, they don't need to throw out such intel. FISA is already so incredibly easy that there's no problem for them to simply ask for one up to 72 hours later (they don't even have to wait). And while FISA makes it unbelievably easy to secretly spy on American citizens, and pretty much never turns down a request, at least there's somebody else retroactively looking at the decisions to make sure that an out-of-control executive (this one or some future one) doesn't use this as an excuse to do political spying. That's the whole idea behind checks and balances. This isn't a partisan thing, James. There's a Republican Congress, a Republican White House, and a Republican Judiciary. It's not like the Democrats would even be much involved in oversight. But nobody, left or right, who believes in our constitution, should want to throw away the checks and balances that protects the integrity of the system.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#5)
    by Talkleft Visitor on Tue Jan 24, 2006 at 03:59:38 PM EST
    I didn't say it was a partisan thing - heck, Clinton did warrantless economic espionage in the 90's, and that didn't concern me either. Here's my point. The people being listened to are foreign nationals. They may (or may not) contact Americans. Are you saying that the President has, under the war powers granted in 2001 and again in 2002, the power to bomb enemies and send soldiers to kill them - but does not have the authority to serveille them? So far as I can tell, that's what is being asserted here. IT's simply absurd.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#6)
    by Pete Guither on Tue Jan 24, 2006 at 04:29:23 PM EST
    And again, you state it incorrectly. The President does have the power to surveil them under FISA. Why won't he follow the law that allows him to surveil American citizens? Congress gave the President the power to bomb the enemy. Congress gave the President the power to spy on foreigners. Congress specifically by law gave the President the authority to spy on Americans talking to foreigners under the conditions set forth by FISA. Why is he so afraid of accountability? What does he have to hide? The mere fact that he wants to spy on Americans without even superficial rubber-stamped oversight should make every American concerned. What if you were in charge of a company that was going through tricky times, and the CFO told you that he needed to be able to handle the finances quickly, without the Board of Directors or the auditors looking at his books. Would you give him the green light to do whatever is necessary with no oversight, or would you be suspicious?

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#7)
    by roger on Tue Jan 24, 2006 at 04:34:12 PM EST
    Also, if a call goes from Bin Laden in Pakistan to someone in say, Germany, not even FISA is required. Listen away!

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#8)
    by Pete Guither on Tue Jan 24, 2006 at 04:46:06 PM EST
    What I don't understand is why any Republicans even support the President on this. What happened to their belief in the individual?
    Republicans ... have always taken the side of the individual, whose freedoms are threatened by the big government that Democratic idea has spawned. Our case for the individual is stronger than ever. A defense of the individual against government was never more needed. And we will continue to mount it. Free Individuals in a Free Society It has long been a fundamental conviction of the Republican Party that government should foster in our society a climate of maximum individual liberty and freedom of choice. Properly informed, our people as individuals or acting through instruments of popular consultation can make the right decisions affecting personal or general welfare, free of pervasive and heavy-handed intrusion by the central government into the decisionmaking process. This tenet is the genius of representative democracy. - Republican Party Platform 1980
    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#9)
    by Talkleft Visitor on Tue Jan 24, 2006 at 04:48:16 PM EST
    I'm starting to wonder how many times I need to ask this. Say we are listening to a foreign national. Ahead of time, we don't know who he contacts, or where the people he contacts are As we listen, he sometimes contacts an American in the US. How does FISA handle that? We did not know up front that he was going to contact a US person, much less what specific person or what specific contact point. So how does FISA deal with that? Are you saying that the President needs to go to FISA every single time we want to surveille a foreign national (overseas), because they may someday (using some method) contact a US person? The reason that's absurd is that we don't know whether any US person will be contacted when the surveillance starts. So under this scenario, you think it would be legal for the President (really, the military under his command) to assault the house where said foreign national was, quite probably killing him - but it would be illegal to surveille him, because he might someday contact a US person within the US? Heck, when the initial recording of a conversation between the foreign national and the US person took place, it's probably not known that a US person was involved - these things are almost certainly automated. So later on, when a real person looks at the transcripts kicked out by the automated systems, are you saying that the one involving a US person needs to be tossed, without regard to what was being discussed? Given the fact that up front, there was no way to tell that a US person was involved?

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#10)
    by Sailor on Tue Jan 24, 2006 at 04:55:45 PM EST
    So... with this thinking, if the NSA is monitoring the phone of a person in a foreign country, and said person sometimes makes calls that end up in the US, your contention is that they need a warrant
    YES!!! If you tap phones in America you need a warrant. Oscar, nice homily.
    heck, Clinton did warrantless economic espionage in the 90's
    That's a lie, clinton went before FISA court every time and NEVER held that he had the right not to.
    Here's my point. The people being listened to are foreign nationals
    NO! bush admitted he tapped Americans phones, and still says he'll do it again.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#11)
    by Talkleft Visitor on Tue Jan 24, 2006 at 05:40:21 PM EST
    The answer
    FISA is already so incredibly easy that there's no problem for them to simply ask for one up to 72 hours later
    to the subsequent question
    As we listen, he sometimes contacts an American in the US.
    How does FISA handle that?
    Sometimes it helps to read other people's posts before posting, especially when they already answered your question in a direct response to one of your previous posts.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#12)
    by Talkleft Visitor on Tue Jan 24, 2006 at 06:13:56 PM EST
    Sigh. allen - when we surveille a foreign national, we don't necessarily know who they'll contact. So when surveillance starts, there's no need of a warrant, period. At some point, said foreign national might (or might not) contact a US person in the US. So let me make the question clear - you are asserting that - at the start of the surveillance of the foreign national - when we have no idea who he'll contact (or where the people contacted will be) - you assert that we need to get a warrant, on the assumption that some US person, someday, might be on the other end? If that's the case, how is any NSA surveillance legal, ever?

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#13)
    by Pete Guither on Tue Jan 24, 2006 at 06:56:00 PM EST
    You get a warrant when a U.S. citizen is involved. FISA already allows the occasional hit on a U.S. citizen. No warrant is required if there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. But yes, it does mean that if there is a substantial likelihood that you're going to be spying on American citizens, well we are a country with laws that even our government must follow. (And with FISA, you can do it 72 hours after you listen to it!) And quite frankly, I'm sick and tired those who would throw out the protections of the Constitution from over-reaching government because they're afraid (even worse here, they want to give up Constitutional protections of citizens to avoid inconvenience!) I have confidence that Americans can deal with a bunch of terrorists without giving up our Constitution. Sure it's harder, but then, were better.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#14)
    by kdog on Tue Jan 24, 2006 at 07:33:02 PM EST
    So how does FISA deal with that? Are you saying that the President needs to go to FISA every single time we want to surveille a foreign national (overseas), because they may someday (using some method) contact a US person?
    No JR...once the foreign national contacts a US citizen on US soil, the NSA must go to the FISA for a warrant within 72 hours of the start of the spying on the US citizen to present their probable cause to continue to spy on that citizen. Seems reasonable and prudent to me. What you're saying is the NSA could spy on any American who makes or takes international calls or emails. That is a gross violation of the 4th amendment, and in my opinion can simply not be tolerated by people who call themselves free.

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#15)
    by Talkleft Visitor on Tue Jan 24, 2006 at 07:40:39 PM EST
    James Robertson:
    Sigh. ... how is any NSA surveillance legal, ever?
    Sigh indeed. I will more than sigh, I will scream out loud if I have to endure any more posts asking the same question when it's already been answered, three times in this thread alone, and about a zillion times previously, every time FISA has been discussed, here and elsewhere: They can apply for FISA approval up to 72 hours after the surveillance of a US citizen. What is so hard about that?

    Re: DeWine Proposed FISA Amendment in 2002 and Was (none / 0) (#16)
    by Sailor on Tue Jan 24, 2006 at 07:59:54 PM EST
    JR, you assumed a premise not in question.
    when we surveille a foreign national, we don't necessarily know who they'll contact.
    bush and the NSA, the FBI, the DoD have already admitted that they monitor domestic traffic, American peace groups and political protestors. It isn't a case of OBL called Ed in Toledo, it is a case of Ed in Toledo mentioned the words "Osama Bin Laden" in a phone call. Besides, why would bush worry about phone calls to OBL, since bush has stated that "He doesn't matter" ?

    DeWine Proposed FISA Amendment in 2002 and Was Rejected | 16 comments (16 topical)